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Burning Crosses on Campus: University Hate Speech Codes

Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning, at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, including anti-Semitism, without running afoul of [established First Amendment principles].”

On the other end of the spectrum, are authors who argue that hate speech attacks individuals’ Fourteenth Amendment right to equality, which outweighs any cathartic desire to degrade people because of their race, ethnicity, sexual orientation, and religion. This line of thinking, recognizes the fundamental right to free speech but argues that it can be restrained when used to intrude on others’ dignity rights. The advocates of campus hate speech codes claim that a college’s mission to further intellectual freedom is not undermined by restricting intimidating speech on campus; consequently, some scholars argue that curbing racist and xenophobic speech would not undermine the core purpose of higher education, the acquisition of truth.

Both factions have relied on the Supreme Court’s First Amendment precedents to bolster their separate claims. Opponents of university hate speech regulations have often based their arguments with R.A.V. v. St. Paul, in which the majority found a municipal ordinance against cross burning to be unconstitutional. Following the rationale of that case, libertarians and several lower federal courts have asserted that university administrators lack the authority to prevent the spread of vitriol, no matter how racist, xenophobic, or sexist. Eleven years later, in a quiet coup, the Court upheld a more rigorously drafted cross burning statute than the one struck down in R.A.V. The later decision, Virginia v. Black, defined the scope of legitimate limitations on destructive messages.

This article adds a fresh perspective to this decades-old academic tempest of intellectual disagreement about First Amendment theory. It first discusses the current problem of hate speech on college campuses. It then turns to a survey of United States First Amendment jurisprudence that is relevant to the regulation of hate speech on campus. Then it provides a comparative analysis of International and European regulations of hate speech. The section compares and contrasts international approaches to that of the United States. In the final portion of the article, I analyze the narrow and broad implications of the Supreme Court’s rational in Virginia v. Black to develop two forms of college hate speech regulations that are likely to withstand First Amendment challenges.